Why?  You’re a lawyer.  Shouldn’t you be the master of persuasion who can get what you want, when you want it, and how you want it, every single time?

Unless your name is “Svengali the Master Manipulator,” chances are that many of your requests are not being granted, or at least not being carried out exactly the way you’d like to see them handled.  But it’s not because your requests are falling on deaf ears.  In fact, your listeners are probably hearing exactly what you’re saying.  The problem is that you’re asking for the wrong thing.

That’s because when most people make requests, they don’t ask for what they want.  Instead, they actually ask for what they don’t want.

For example, has your boss ever asked you to work on an important client issue?  Many bosses will say something similar to, “This is our most important client, so whatever you do, don’t mess this up!”

But look at the embedded command in that request for help: “Mess this up.”  Rather than asking you to do a great job or to help the client, your boss is telling you to do the exact opposite of what he really wants done.

The reason he’s telling you to do the opposite of what he wants is because our brains aren’t wired to hear the word “Don’t.”  Our minds think in images.  When you hear the word “Orange,” you don’t think of the letters “O-R-A-N-G-E.”  Instead, you think of the fruit, the color, or maybe even a bottle of orange juice.  When you recall information, your mind pulls up the pictures that help you “see” the memory.

This phenomenon makes it difficult to see the negative of something.  If I ask you to think of “Not an Orange,” your brain has difficulty following my request, because it doesn’t have a readily available picture for “Not an Orange.”  Instead, your brain reverts back to your picture for “Orange,” because that’s the only picture it can pull up.  Rather than thinking of what I hoped you would think about, you actually began thinking of the exact opposite.

The same thing happens when your boss tells you “don’t mess this up.”  You don’t have a readily available picture for “Not Messing Up,” but you sure have a great picture of “Messing Up.”  Your picture for “Messing Up” may include the image of you fumbling and bumbling your way through the presentation, missing an important legal development in your research, or maybe even an image of you sleeping through the filing deadline.  Whatever your picture of “Messing Up” looks like, that will be the image that jumps into your mind when your boss tells you not to mess up.

That’s why it’s important to ask for what you want, rather than what you don’t want.  Rather than telling you “not to mess this up,” your boss would get better results from you by saying, “This is our most important client, so I know you’re going to do an exemplary job.”  Rather than embedding a negative command into your head, now your boss is embedding a positive command, “Do an exemplary job.”  Your brain can absorb this positive request and put it into action, because you know (hopefully) what an exemplary job looks like.

If you’d like to get better results when you ask others to do something, take a moment to rephrase your request in a positive format before you make your request.  Anytime you feel yourself getting ready to say, “Don’t,” ask yourself, “What do I want this person to DO?”  Rephrase your question positively, so that the listener is given a positive command and clear direction for what to do next.  Here are some examples of how changing the phrasing of your request can change the outcome:

• Rather than: “These are our most expensive dishes, so whatever you do, don’t drop them.”
• Ask for what you want:  “These are out most expensive dishes, so whatever you do, hold onto them carefully.”
  
• Rather than: “The game is on the line, so don’t drop the ball.”
• Ask for what you want: “The game is on the line, so protect the ball.”
  
• Rather than: “The statute of limitations has almost expired, so don’t miss the filing deadline.”
• Ask for what you want: “The statute of limitations has almost expired, so file these pleadings by Friday.”

By changing the picture in your listener’s mind, you change the outcome.  Rather than urging them to focus on the negative outcome, you shift their focus towards the positive outcome that you desire.  Eliminate the word “don’t” from your request vocabulary, and ask for what you want.  When you do, your presentations and your requests will become dramatically more persuasive.

In criminal cases, one of the issues we almost always inquire about is whether any of the jurors have ever been charged with a crime.   We explain that it doesn’t matter whether it was a misdemeanor or a felony, and it doesn’t matter whether it was dismissed or whether they went to prison.  Usually, one of the attorneys will ask a question like, “Have you, or someone close to you, ever been arrested or charged with a crime?”  Then we’ll ask for a show of hands to see who falls into that category.  Probably every criminal prosecutor and defense attorney asks something similar, because it’s important for us to know whether or not any of the potential jurors have ever been charged with a crime and how that experience is going to shape their perceptions of the evidence and proceedings in this case. 

In the five cases I tried, every juror on every panel was asked whether they had ever been charged with a crime.

But here’s the interesting twist: We weren’t trying to discover whether or not they’d ever been charged with a crime.  We already knew what what their answers should be.  In one of the jurisdictions where I practice, the prosecutors have access to a statewide criminal history program and can run a criminal history check on every potential juror.  In addition, they have a computer in the courtroom so they can pull up more detailed information from the clerk’s office or their case management system. 

So if we weren’t trying to discover whether or not they’d been ever been charged with a crime, why were we asking the question?

Because we wanted to determine which jurors would be honest about it. 

Every juror on every panel was asked whether they had ever been charged with a crime, and in almost every single case, at least one of them lied.

After we completed questioning of the entire panel, we asked the judge to bring some of the jurors back into the courtroom for individual questioning.  Almost without fail, once we confronted them about their lie, they would admit the truth.  We heard a variety of reasons why they hadn’t been honest:

One told the prosecutor that he’d “forgotten.”  “Forgotten?!?”  This guy wasn’t just given a ticket or a Notice to Appear — he’d spent two nights in jail.  Quick, do me a favor and take this pop quiz: How many times have you ever been handcuffed, arrested, and transported to the county jail?  Is that something you “forget?”  (Especially if it only happened 4 or 5 years ago…)

Another was asked, “Why didn’t you tell us about the time two years ago when you were sentenced to probation after you got caught acting as a lookout for a burglary?”  Confronted with the details, he shifted uncomfortably in his chair, then said he thought “it didn’t count,” because he hadn’t been adjudicated.

There were a few other notable comments, but the most memorable was the guy who’d been arrested, convicted of a crime of violence, and sentenced to a lengthy jail sentence.  His reason for not telling us?  He “just didn’t want to.”  If we hadn’t had the details of his arrest and conviction in front of us, we never would have learned about his prior arrest, and it would have changed the dynamics of the entire jury panel.

Unfortunately, these lies may not be uncovered until after they’ve affected your verdict.  For example, there was a $28,000,000 plaintiff’s verdict that was thrown out and a new trial ordered because three jurors lied during jury selection.  The defense attorney had asked whether anyone had ever been involved in a lawsuit.  Two of the jurors didn’t raise their hands at all (one had been sued twice, the other three times), and the third admitted she’d filed a lawsuit, but didn’t mention the other nine times that she’d been sued.

We don’t want to believe it, but some potential jurors will lie to us.  These lies affect the integrity of the jury system and the validity of your verdict.  I wish I could give you a secret formula for catching every lie and keeping those potential jurors off of your jury, but there’s no perfect solution.  The best I can recommend is that you make a clear record so that you can ask the court for help if you do uncover a lie.

First, ask the questions.  Ask specific questions.  And if you have any doubts about a juror, ask them directly.  The more specific and direct you are, the less wiggle room they have, and the more likely it is that they’ll be honest.

Second, don’t leave any room for ambiguity in the record.  If you ask, “Has anyone ever been arrested for any crime?” and none of the jurors raise their hands, make sure you create a record.  Say something like, “None of the potential jurors raised their hands”  or, “Let the record reflect that no one has raised their hand.”  Then, if you discover that one of the jurors has a criminal record, the court will have something to act upon.  Without that statement, your appellate record will be ambiguous as to whether or not the any jurors responded to your question.

You won’t be able to catch every lie, and not every lie you catch may matter. But if you do catch someone in a lie and you think it affected your verdict, you need to make sure that your court record lets the trial court or appellate court help you out.

Friends.  Romans.  Countrymen.

Snap.  Crackle.  Pop.

For whatever reason, your brain is wired to pay more attention when provided with a list of three options.  Your brain will be persuaded more easily when provided with a list of three arguments, and you’re more likely to take action if you’re given three reasons to do something.

For our brains, three is the magic number.  Not two (“Too few!”)  Not four (“Too many!”).  No, three is the perfect number of options, arguments, or reasons to provide to the person you’re trying to persuade.

Let’s call it the Triad of Persuasion.  If you can find a way to provide someone with three options, three arguments, or three reasons to justify their decision, you’ll have a much better chance of persuading them than ever before.

One of the most effective ways to put the Triad of Persuasion to use is when you need to handle an objection from someone you’re trying to persuade.  It could be the judge you need to rule in your client’s favor, the potential client you want to sign, or the senior partner whose permission you need to work on a career-changing project. 

Regardless of whom you’re trying to persuade, unless you’ve got the Force on your side (“These aren’t the droids you’re looking for”) you’re probably going to encounter objections.

For example, let’s take the scenario with your potential client.  You’ve just started your new solo practice and have done such a great job of marketing yourself and improving your legal skills that now you’re sitting face-to-face with a potential client who could potentially need your legal services for years to come.  But then, just as you think you’ve got everything finalized and are ready to ask for the business, she raises an objection: “I’m not sure we should do this…  After all, you’re just a one-person operation.”

This might stump other attorneys, but not you.  After all, since you’re a professional, you’ve already anticipated this objection.  As Dr. Alan Weiss, the author of Million Dollar Consulting says, there aren’t any objections you haven’t heard before.  So if you’re not prepared to respond to an objection, you’re negligent.

But you’re not negligent, that’s why you have not one, not two, but three answers ready for this objection.

Begin by disarming the objection with a confident statement, such as, “That’s exactly why you need me.”

That statement usually creates a pause or gets the client to ask, “What do you mean?”  Either way, take this brief moment to gather your thoughts.  Then launch into your Triad of Persuasion, outlining the benefits of hiring your single-person firm rather than a large, multi-national conglomerate: “First, you’re going to get my complete attention and will be my number one priority.  You’re going to get a faster response because I can adapt quickly to respond to your needs.  Second, you’re going to be dealing with the principal attorney at all times, so your case will never be handed off to somebody else who doesn’t know everything about the case.  You’re never going to walk into court and see some junior attorney who you’ve never met before.  And finally, since I’m a one-person operation, my fees don’t have to support a gigantic overhead or a large staff.”

(Obviously, if you work for a gigantic firm, you’d have three responses prepared for when the client objects and says, “I’m not sure we should do this…  You’re such a large firm, I’m afraid my case won’t be a priority.”)

By preparing three responses to each objection, you become (literally) three times more persuasive.  But actually, you’ll become even more persuasive than that, because the Triad of Persuasion has a multiplier effect.  By stacking the three reasons, you appear more confident and more prepared, and therefore, you also appear more reliable.

But don’t limit your use of the Triad to those situations where you’ve prepared your responses to expected objections.  You can also use the Triad when you’re speaking off the cuff and need to demonstrate your conviction or your confidence.

Let’s imagine a scenario where you’re at a luncheon and the person next to you asks, “You’re a lawyer, right?  Do you think lawyers should advertise on TV?”

Again, start with confidence.  “I’m glad you asked me that.  There are three reasons why lawyers should/shouldn’t advertise on TV.  First, because…”

When you make that statement, you may not know exactly what your three reasons are going to be.  You’ll probably know exactly what your first reason will be, you’ll have some idea of what your second reason will be, but you might not have any idea at all what your third reason is going to be. 

It doesn’t matter.  You should still begin with the same set-up: “I’m glad you asked me that.  There are three reasons why…”  In fact, you should practice that set-up phrase a few times so that it rolls off your tongue.  That way, while you’re delivering the line, you can put your mind into high gear and finalize your thoughts for reasons #2 and #3.

Watch how much more attentive your listeners become when you deliver three reasons for each question or each objection, rather than the customary one (or worse, the half-answer) that they usually receive.

By justifying your arguments with three points, you look more polished and better prepared.  People will assume that you’ve put more thought into your answer, and will also feel that your answer is more believable, simply because you’ve done a better job of justifying it.  By giving three reasons, rather than one, you’ll soon become more persuasive than ever before.

• The “Are you lying then or are you lying now?” prior inconsistent statement
• The “I did it, and I’d do it again!” confession
• The video of the “disabled” plaintiff easily lifting 50 lb. bags of mulch or participating in semi-professional wrestling matches
• The “smoking gun” email that proves the defendant knew about the potential danger and decided to cover it up rather than recall the product

“It” is that piece of evidence that you can’t wait to show to the jury.  You won’t have “It” in every case, but when you do, it’s a wonderful feeling.  You know that as soon as you show “It” to the jury, the case will be won.

But hold on just a second.  There’s something important you should know before you show “It” to the jury.

No matter how damning that prior inconsistent statement may be, it’s worthless if the jury can’t hear it.  Even if your video completely contradicts the plaintiff’s claims, it’s worthless if the jury can’t see it.  Some jurors are too embarrassed to admit they can’t hear the recording, can’t read your exhibit, or can’t see your video.  You need to be assured that they see and hear “It.”  Here’s how to do it:

1. How to guarantee that the jury hears every word of your recorded statement. As you start playing the audio recording, cup your hand over your ear and make eye contact with each and every juror.  Non-verbally, you’re asking them if they can hear the statement.  If they can hear it, they’ll nod their heads in agreement or give you a “thumbs-up” sign.  If they can’t hear, they’ll give you a non-verbal clue to raise the volume (or maybe even tell you, “Turn it up, I can’t hear!”)

Here’s an added benefit: Making eye contact with each juror forces you to “check in” with them, so you can evaluate how things are going.

2. How to guarantee that the jury sees your video. Get to the courtroom early and set up your video display.  Turn on your video, then climb into the jury box.  Sit in every seat in the jury box so you can see what your jurors will see.  Do you need to crane your neck to see the video?  When you move to the end of each row, does it become difficult to see the video screen?  Is the screen too close?  Too far?  Make any adjustments now, before the jury gets here, so you can be assured that they’ll see your evidence.

Once you start playing the video for the jury, you’ll want to repeat the step outlined above to ensure that they can hear the recording.  While you’re making eye contact with each juror, track their sightline.  Can they actually see the video?  Are they actually looking at it?  If not, make any necessary adjustments so they can view your evidence.

3. How to guarantee that the jury reads your exhibit. If you’re presenting written exhibits to the jury (such as posters of the jury instructions or blow-ups of contract highlights) you want to make sure the jury actually reads your exhibit.  To make sure they have enough time to read it, quietly read through the entire exhibit to yourself twice. You’re already familiar with the exhibit, so you’re going to read through it faster than your jurors will.  After your second read-through, take a moment to make eye contact with every juror.  Look at their eye movement.  If they’re looking at you, they’re ready for you to proceed.  But if you see they’re still reading, don’t say anything yet.  Wait until everyone has finished reading before you or your witness say anything about the exhibit.

If you’ve done your homework, you already know how to make “It” admissible.  You also know when you should publish “It” for maximum persuasive effect.  Now just follow these simple tips, and you’ll guarantee that jurors will see and hear your most important evidence.

During opening statements, the defense attorney accused the defendant’s father of sexually molesting her when she was 8 years old and said that the father was involved in covering up the death of his 3 year old grand daughter.  As you can imagine, the father wasn’t too happy about it.

Now, one day later, the father is on the witness stand (for the second time) and the defense attorney is cross-examining him (for the second time).

The tension in the courtroom is palpable.  There’s no love lost between these two, and in fact, no one in the courtroom would be surprised if the father jumped out of the witness stand and tried to punch his first through the attorney’s skull.

He is (as you probably would be if you were in the same situation), a very antagonistic witness.

In a million years, do you think that he’d ever try to help the defense attorney’s case?

Yet, in spite of all of the hatred that probably exists between the two of them, the defense attorney acts as if he expects the father to help him out.

What exactly does he do?

He sets up some gigantic calendar pages on an easel, and then asks the Court’s permission to have the father step down from the witness stand and fill in some dates on the calendar pages.

First of all, when you think that a witness really hates you, you probably shouldn’t ask them to step down from the witness stand…  it makes it too easy for them to take a swing at you!

And, of course, you don’t want to put any type of stabbing weapon, like a marker, in their hands.

But even if the witness isn’t intent on killing you, it’s just risky trial advocacy to ask an opposing witness to step down and write on your exhibits.

Remember, during cross-examination, YOU are the star of the show.  You get to use the only tool in your arsenal, the leading question, to tell your winning story through your opponent’s witnesses.  The leading question is the only tool you have to maintain control during cross-examination.

And control is an essential part of cross-examination.  You don’t want to cede control to the witness…  who knows what he might say or do if you put him in the driver’s seat!

So, back to our courtroom situation…

What could possibly go wrong by asking an opposing witness to step down and write on your exhibits during cross-examination?

Well, a couple of things.

First, the witness can go berserk and write all over your exhibits.  Not likely, but hey, it could happen.

Next, even if he’s not going to go nuts, you’re still giving him the opportunity to become the star of the show and to direct the jury’s attention towards matters that he thinks are important.  Rather than putting a simple “X” on the calendar, he can write a more lengthy response, or phrase it in such a way that it doesn’t help your case.

Third, by asking the witness to step down from the witness stand, you’re asking the jurors to focus their attention on him, rather than you.  Their eyes will be drawn to him because he’s moving (which breaks up the visual boredom of a trial), but also because, when you give him a marker and stand him up before the jury, you put him in the role of “The Teacher” — do you really want them to see your opposing witness in that light?

Why let him have control or the spotlight, even for a moment?  During cross, you want to direct the action and control the tempo.

What would I have recommended instead?

Well, first of all, I have to say that the idea of using gigantic calendar pages is a great idea, since it (literally) puts everyone in the courtroom on the same page when discussing the timeline in the case.

However, rather than asking him to step down from the witness stand and write on the board, I would recommend maintaining control with a combination of leading questions and body language:

Q: “The last day you saw your grand daughter was June 15th, right?”

A: “Yes.”

Then move over to your giant calendar and mark on the June 15th date to indicate the event.

It’s not a major difference, but it prevents the witness from expanding his answers or becoming a “teacher” to the jury.  By maintaining control throughout your cross-examination, YOU will be the star of cross-examination, and will be able to tell your winning story through your opponent’s witnesses.

Good luck!

It doesn’t have to be that way.  I’m here to tell you, “Yes, you can have it ALL!”

If you’ve resolved to be more successful inside AND outside the courtroom this year, to enjoy more free time, or to take better care of yourself, I want to help you make sure that your New Year’s Resolution REALLY HAPPENS this year.

That’s why I’ve created a brand new productivity and time management training program, taking the most powerful productivity techniques and strategies that I’ve ever discovered, and putting them into a simple system that WORKS, even for busy trial lawyers.

Introducing www.TimeForLawyers.com

It’s an easy to follow 90-day program that takes you step-by-step through proven techniques and strategies you can immediately use to take control of your time and your productivity.  These are the same techniques that I used to go from working 90+ hours a week (and not having time for a pet, let alone a girlfriend) to living a life where I’ve been able to get even MORE done in LESS time, enjoy MORE success, travel around the world, start a family, and spend all the time I want with my new son!

If you’re ready to do the one single thing that will help you regain control over your life, double your productivity, and allow you to enjoy a tremendous new level of success inside AND outside the courtroom, this is the program that will help you make it happen.

Here’s what to do:  Go to http://www.TimeForLawyers.com and sign up at the bottom of the page.  You’ll immediately get access to the first “Quick Start Guide,” which will help you focus on the important stuff, and help you minimize the distractions that are preventing you from getting everything done.  After that, each new video session will include simple exercises to give you the helping hand you need to get MORE done in LESS time, so you can enjoy success inside AND outside the courtroom.

I’ve invested tons of effort learning all of these powerful techniques that I put into this single program – and I guarantee you that it will dramatically increase your personal productivity and success.

Here’s the information again: http://www.TimeForLawyers.com

Let’s make this your best year YET!

Your witness has some fantastic information that is going to put your case over the top.  Unfortunately, he’s also going to bring some pretty significant baggage with him to the witness stand.  It might be a conviction for perjury, perhaps a damning prior conviction, or maybe he’s even placed a $100,000 bet riding on the outcome of the case — whatever the baggage is, it’s bad.

So… what are you going to do?

Are you going to bury your head in the sand and hope that the problem fixes itself?  Optimistically hope that your opponent incompetently forgets to cross-examine the witness about the baggage?  Pray for a miracle (or for a continuance)?

Certainly, in some cases, the baggage may be so terrible that you decide not to call the witness.  After all, if you’ve done a good job of case selection and preparation, you’ve got at least two forms of proof for every essential element, so you’ll still be able to successfully prove your case even if you don’t call the witness.  But, just for sake of argument, let’s assume that your second form of proof carries even more baggage (or even worse, you don’t have a second form of proof).  You’re stuck calling this guy — what are you going to do to minimize the inevitable damage that will erupt during cross-examination?

One way to exercise damage control is by eliciting the damaging information yourself during direct examination.  It’s an essential element of spin control: timing the release of negative news to steal your opponent’s thunder, so that the problem can be addressed on your terms, rather than your opponent’s terms.

Here are three quick guidelines for exercising damage control during direct:

1. Timing is everything. Apply the principles of Primacy and Recency to the timing of your disclosure.  If you start with the bad news, it negatively affects the way jurors look at the rest of your witness’s testimony.  If you end with the bad news, that’s all they’ll remember.  Instead, time the disclosure during the middle of your direct examination or during a low point in the testimony, so that it doesn’t resonate as loudly in the jury’s minds.

2. Confront the witness. If you want to minimize the sting of the impeachment material, consider subjecting your witness to a “mini cross-examination” during your direct.  In my experience, disclosures aren’t as effective if you meekly ask the witness about the bad news.  You need to actively confront him about it.  You’ll have to determine how much confrontation is appropriate in your case, but chances are, at the very least you’ll switch to leading questions, raise your voice, and quicken the pace of your examination.  (“After you were robbed, you didn’t immediately call the police, did you?  No, you called your friend, instead, right?  And you asked him to remove the bong and the drug scales from the house before you called the police, didn’t you?”)  Often, your opponent won’t even object to your use of leading questions during this portion of your direct, because you’re covering exactly the same issues that they want to address.  By asking the “big” questions, you should be able to prevent them from being re-asked during cross.  Remember, “Asked and Answered” or “Repetitive” objections apply to the entire examination, not just one lawyer’s series of questions.

3. Ask “Why?” and accept the witness’s answer. This is the most important part if you’re hoping to draw the venom out of the wound.  Once the witness has admitted he did the bad deed, you need to give him a chance to explain why he did it.  At the end of your “cross-examination,” you’re going to ask him to tell the jurors his reasoning, motivation, or explanation for what happened.  To ease into this section, consider pausing for a moment, shifting your body language to a less confrontational stance, lowering your voice, and then simply asking, “Why?”

Give him a chance to explain what happened.  If he doesn’t fully explain his actions, or his explanation falls short of credulity, switch back to a more confrontational mode and hit him with more “Why?” questions until he gives you a reasonable explanation.  It’s important that you don’t let him off the ropes until he’s given you a plausible explanation, but once he’s given you a plausible answer, you need to accept his response.  Demonstrate your acceptance through both your body language (ex. nodding your head once in agreement, relaxing your shoulders as the tension disappears from the room, or turning towards the jury to make eye contact) and your tone of voice.  It’s essential that you non-verbally communicate your acceptance to the jury, because if you don’t accept the answer, there’s no way the jurors are going to buy it.

[NOTE: I was a bit hesitant to include this last portion, because I'm afraid some lawyers will misconstrue my advice and make improper comments on the record indicating their acceptance of the witness's answer.  Remember, it is improper for lawyers to state our belief in the justness of a cause, so you shouldn't ever make comments like “I believe you” or “I accept your answer.”  However, I don't believe this precludes lawyers from demonstrating their belief in their case through changes in posture, stance, tone of voice, pitch, tempo, or non-verbal body language.]

Finally, remember to periodically check in with your jurors by making eye contact with them during this exchange, so that you can gauge how they’re reacting to the disclosure and calibrate accordingly.  You won’t be able to completely eliminate the negative impact of the impeachment material, but hopefully, if you correctly apply these three techniques, you should be able to exercise a fair amount of damage control, and prevent your witness from imploding on the witness stand.

During direct examination, they’re asking questions that grab the factfinder’s attention, paint a vivid picture of the scene, and elicit facts that persuade judges and jurors to believe the witness’s version of events.  During cross-examination, they’re pinning witnesses down on inconsistencies, impeaching witnesses’ credibility, and showing jurors why the witnesses’ stories can’t be believed.

Yet, all of these direct and cross-examinations suffer from a tragic flaw.

What’s the tragic flaw in all of their examinations?  Regardless of whether it’s the cross-examination of an inconsequential witness, or the direct examination of their star witness, all of their examinations are concluding on a weak note, rather than building to a powerful and persuasive crescendo.

That’s because they all finish in exactly the same way: Just as the direct or cross-examination reaches a crescendo, the lawyers stop and say, “Your Honor, may I have a moment to confer with co-counsel?”  Then they walk back to counsel table, speak in hushed tones, announce, “No further questions, your Honor,” and tender the witness to opposing counsel.

Why do these otherwise smart and skilled attorneys ruin their examinations this way?

The reason is because they’re afraid they might miss an important issue or case-winning impeachment point, so they turn to their “spare brain” and ask for help.  Even though these conversations almost always sound the same (“Did I miss anything?”  “No, good job”) it’s still important to have them, because if you do ever miss an important point, you’ll be able to correct the problem before concluding your examination.

But despite their importance, you don’t want these conversations to be the last thing your jurors remember about your examination.  Instead, you want to finish on a high note, so that you can take advantage of the theory of recency during your examination.  (Here’s the theory of primacy and recency in a nutshell: In communication, what you hear first and last you’ll tend to remember better than the stuff you hear in the middle.) 

To take advantage of recency during your next examination, don’t wait until the very end of your examination to ask for help.  Instead, keep a handful of questions on a major topic in reserve before asking to confer with co-counsel.  Once you’ve concluded your off-the-record conversation, return to the lectern and hit the witness with your final series of questions.  Much like the encore at a concert, this series of questions will be more memorable, because it stands out from the rest of your examination.  All that’s left to do is smash a guitar against the witness stand, so that when you walk offstage your jurors will be left with the impression that your examination was a “smashing” success!

I’d only been out of law school for a week or two and was trying my first Driving Under the Influence (DUI) case.  DUI cases often involve a variety of physical and documentary evidence, and this case was no exception.   I had a mugshot showing how the defendant looked when he’d been booked into the jail, a videotape of his field sobriety tests, documents showing the reliability of the breath testing instrument, and, of course, a printout showing the results of the defendant’s breath tests.

Wanting to make sure that I didn’t miss anything, I’d handwritten all of my questions on a legal pad, and was in the process of dutifully reading each predicate question aloud to the witness:

Q: I’m now showing you what’s been marked as State’s Exhibit A for Identification.  Do you recognize that photo?

A: Yes, I do.

Q: What is that photo of?

A: It’s a booking photo taken the night the defendant was arrested.

Q: Does that photo truly and accurately depict the way the defendant looked the night you arrested him for Driving Under the Influence?

A: Yes, it does.

Q: Your Honor, I ask that what has been marked as State’s Exhibit A for Identification be introduced into evidence as State’s Exhibit #1.

Judge: Any objections?

Defense attorney: No, your Honor.

Judge: State’s Exhibit A for Identification will be introduced into evidence as State’s Exhibit #1 without objection.

Q: Your Honor, may I have permission to publish the exhibit to the jury?

Judge: As soon as the clerk marks the exhibit, you may.

Silently breathing a sigh of relief while simultaneously trying to suppress a huge grin, I approached the witness box, retrieved the photo, and handed it to the clerk.  While waiting for her to mark it, I thought to myself, “I did it!”  Oh sure, there hadn’t been any objections, and the evidentiary predicate for photographs is the easiest one in the book, but still, I’d done it — I’d admitted my first piece of evidence!  Having accomplished my goal, I approached the jury box and proudly handed the photo to the courtroom deputy, who then handed it to the first juror. 

And that’s when I made the stupid mistake that thousands of other trial lawyers make in court every day…

As soon as the photo left my hands, I returned to the lectern, reviewed my notes, and immediately started asking my next series of questions.  The first juror didn’t even have a chance to start looking at the photo before I was halfway into my second question.  He hurriedly glanced at the photo and then handed it to the next juror, who barely looked at it before passing it along.  None of the jurors spent more than a second or two looking at the photo before giving it to the next juror.  As a result, something that should have been an important piece of evidence was completely ignored by the jurors because I’d forced them to divide their attention between the exhibit and the witness’s testimony.

Introducing exhibits into evidence isn’t always easy.  Often, we can get so caught up in the act of admitting evidence that we forget to give the jurors a chance to pause and look at our exhibits.  But if we don’t give them enough time to look at your exhibit, its evidentiary impact will be lost.

Here’s your practice tip for the week: The next time you publish an exhibit to the jury, don’t ask your witness another question until the jurors have finished looking at the exhibit.  Don’t rush them.  Give them as much time as necessary to examine it, because if you start asking questions while they’re still examining the exhibit, they’re either going to ignore your exhibit or ignore your witness’s testimony.  Either way, they’re going to miss essential information.  Wait until the jurors finish examining the item, retrieve it from the last juror, and then walk back to the lectern to resume asking questions.  By making this small change in your presentation, you’ll make it much easier to direct your jurors’ focus towards the most important evidence in your case, and prevent them from missing the essential piece of evidence that proves your case!

Before we begin, let’s start with the assumption that your witness honestly has no recollection of what happened, and isn’t intentionally “forgetting.”   (If your witness is trying to side-step perjury charges by saying he “doesn’t recall,” “cannot remember,” or “has no present recollection,” that’s an entirely different nightmare you’ll need to address, and it’s beyond the scope of this article.)  The issue we’re tackling in this article is what to do when time or mental infirmity completely destroys your witness’s memory.

The most dramatic example of lost memories that I ever saw arose when I was a prosecutor intern in the Crimes Against Children / Sex Crimes unit.  One of the cases I was helping with involved a woman who had been drugged with GHB and then raped in the parking lot of a nightclub.  She was able to identify her attacker from photo lineups, so a few days later the police were able to locate him and arrest him.

Tragically, before the case went to trial, she was in a traumatic car accident, suffering a head injury that caused significant brain damage and completely erased her memory of what had happened the night of the rape.

Without her testimony, how were we going to prove the case?  If we couldn’t come up with something, the rapist was going to escape scot-free.

The prosecutor’s first thought was, “Let’s try to refresh her memory.”  Talking with the family, we learned that before the accident, the victim had kept a daily journal.  Her journal entry describing the night of the rape was very detailed, so he was optimistic that the journal might do the trick.  Unfortunately, even after reading through her journal several times, she told us that it didn’t do anything to help her remember.  She recognized her own handwriting and knew that she must have written the entry shortly after being attacked, but she couldn’t summon up an independent memory of the events.

What did that leave us with?

She couldn’t remember the evening, so she wouldn’t be able to testify from memory about what had happened.  We couldn’t refresh her memory, so that option wouldn’t work either.  The crash had happened before she could be deposed and before she could testify in a bond hearing, so we didn’t have any prior testimony we could introduce into evidence.  We’d run into a brick wall.  What were we going to do?

“It’s too bad her journal is hearsay,” I said.  “If she could just read from her journal during trial, we could probably win the case.”

Have you ever had a situation where you became so emotionally invested in a case that you ended up with “tunnel vision” that blinded you from seeing other options?  When that happens, sometimes all it takes is an isolated comment to help you open your eyes and get right back on track.

That’s exactly what had happened here.  The prosecutor had become so focused on having the victim testify that he was overlooking another option for getting her story in front of the jury.  But immediately after I made my comment, he said, “Duh!  Of course we can do that!”

“We can?” I asked.  “How are you gonna overcome the hearsay objection?”

“Easy,” he replied, “we just introduce her journal as a Past Recollection Recorded!”

Hopefully, you’ll never find yourself in a similar situation with a witness whose memory has gone missing, but if you do, you’ll want to know how to admit their prior statement into evidence.  Here are the steps we took to qualify the statement as a recorded recollection:

First, you must show that the witness once had knowledge of the event.  In our case, we could do that by either asking her family members to establish the victim’s knowledge before the car crash, or asking her about her journal writing habits and whether the journal was a fictional work or whether it accurately reflected events in her life.

Next, you’ll need to show that your witness now has an insufficient recollection to testify fully and accurately.  Obviously, our victim didn’t have any memory of what happened, so this was an easy element to establish.  If your witness has a partial memory of what happened, you may be more limited in your use of the recorded recollection.

Once you’ve established that the witness once knew about the event, but now can’t remember, you’ll need to establish the veracity of the written statement you’re seeking to introduce.  There are three things that you’ll need to prove:

First, the statement must have been made by the witness.  If someone else wrote the statement (for example, a police report capturing a summary of the witness’s statement), you’re probably out of luck.

Second, you’ll need to show that the statement was made when the matter was still fresh in the witness’s memory.  In our case, the victim could testify that she wrote in her journal on a daily basis, so each entry was made while the events were still very fresh in her mind.  Often, you’ll be able to establish the freshness of the writing by showing that the statement is dated at or near the time of the purported event.

Finally, you must show that the statement correctly reflects the witness’s knowledge of the event.  This may be established within the four corners of the document.  Is it based on knowledge that only the writer would know, or is it based on hearsay?  If the statement appears to be prepared in anticipation of litigation, you’ll have more difficult hurdles trying to establish this element.

Once you’ve jumped through all of these hoops, your Past Recorded Recollections can be introduced into evidence.  Although you’re going to have the clerk mark the exhibit for evidentiary purposes, the actual writing won’t be introduced into evidence.  Once you’ve laid the predicate, the witness simply reads the statement aloud.  It’s important to remember that the physical document is usually NOT admissible unless your opponent offers it into evidence.

Luckily, we were able to establish all of the elements for admissibility of her recorded recollection, so we were able to successfully prosecute the rapist and keep him off the streets.  One again, a good knowledge of the evidence code had saved the day.

Here’s your practice tip for the week: Before you go to court, print out a copy of the evidentiary predicates for the admissibility of Past Recollection Recorded¹ and place it in your trial notebook.  Chances are, even if you try dozens of cases, you’re probably never going to need it.  However, for that one time when you do need it, this article will prove to be a lifesaver!